Tom, Mountain Dew Took Care of Jerry

What happens when Mickey Mouse has the urge to “Do the Dew?” Well, let’s just say Disney fans wouldn’t like the outcome.

In November 2009, Ronald Ball sued PepsiCo and its bottling company after he drank bits of a mouse carcass from, alas, a not very refreshing can of Mountain Dew. The Illinoisan alleges that he sent what remained of the carcass to PepsiCo for testing, but the company destroyed the evidence and is now seeking to dismiss the legal action.

What is unusual about this case (aside from, well, a dead mouse inside a can of Mountain Dew) is PepsiCo’s defense: Mr. Ball’s can of soda had left the bottling company over 15 months earlier, and that if a mouse chose to take a swim in a sealed Mountain Dew can for that long a period, the citrus acid would have disintegrated the rodent’s organic tissue and turned it into a “jelly-like substance.”

Mmmm . . . good. With the added protein, it could be marketed as an energy drink.

The story, as you’d imagine, disgusted the public, and many media outlets had a good laugh at the possible effects of the case on PepsiCo’s bottom line. Indeed, Bottom Line claimed that PepsiCo’s defense was a mistake, and in order “to win a small court battle . . . Mountain Dew [is] in peril of losing a much larger war.” Atlantic Wireagreed, describing PepsiCo’s defense as a “winning-the-battle-while-surrendering-the-war kind of strategy that hinges on the statement that Pepsi’s product is essentially a can of bright green/yellow battery acid.”

They’re wrong.

At least partially.

The media are correct in predicting that PepsiCo’s defense will most likely secure a win in the courtroom battle on a negligence claim. But PepsiCo has not lost or surrendered the PR war. After the smoke clears, a brilliant PR campaign would put Mountain Dew back in refrigerators and in the minds of many caffeine junkies.

The facts of this case are actually not all that out of the ordinary. Time and time again we hear about consumers who discovered what they believe to be an amputated body part, such as a finger or penis, in their food or soft drink. But whether or not these allegations turned out to have merit largely depended on whether the purchased product was in the same condition when consumed or purchased as it was when it left the manufacturer. In other words, was it tampered with after it left the possession and control of the manufacturer?

The PepsiCo case is not the first to involve vermin. In 1946, someone bought a sealed, mouse-infested soft drink from a vending machine at the Municipal Airport in Chicago. Though the bottling company tried to blame the mouse-in-the-beverage on its negligent sales force, the court found it unlikely that a salesman would have opened the drink and then resealed it. Coke was found liable.

Mice seem to have made a habit out of wading into the beverages of the Windy City’s Coca-Cola bottling company. A 1962 Illinois case involved a busboy who drank a Coca-Cola beverage containing a dead rat or mouse. The Coca-Cola Bottling Company of Chicago argued that because of the soft drink’s chemical composition, bacteria could not live inside the beverage. Yes, the vermin was in the drink, but all harmful bacteria would have died long ago. No harm, no foul, right? The court did not find this argument terribly convincing. Again, Coca Cola lost.

But PepsiCo’s legal defense is a winning one, and the logic behind it should make sense by now. With science on its side, the argument that Mountain Dew’s acidity levels would have disintegrated the mouse implies either that (1) a third party tampered with the can more recently than the proven 15 months since it left PepsiCo’s control or (2) that Mr. Ball is lying. Either way, PepsiCo dodges a products liability claim based on negligence.

And from a PR standpoint, PepsiCo can afford the (temporarily) negative press.

According to USA Today, Mountain Dew is one of the top five most popular sodas in the U.S., and Diet Mountain Dew came in at number eight. Additionally, Mountain Dew’s acidity level is not as bad as compared to other top-selling drinks. To put things in perspective, pure water has a level of 7.0, battery acid has a pH level of 1.0, and Mountain Dew’s pH level is 3.229. Lemon Brisk, 7UP, Lemon Nestea and the market behemoth, Coke, are each more acidic than Mountain Dew. Note, you RC Cola fans: RC Cola has the highest acidity level of all, with a pH of 2.387.

Quite frankly, I find it hard to believe that journalists were shocked to learn that in over one year, Mountain Dew’s citrus acid will disintegrate the organic tissue of a mouse. Even so, the soft drink contains safer acidity levels than canned cranberry juice and lemon juice. We have all read and heard (I hope) about soda’s harmful effect on tooth enamel. And we don’t bathe our teeth in soda for 15 months straight. At this point, strongly refuting Mr. Ball’s claim of negligence is a more important objective than protecting the product’s reparable long-term image.

I continue to drink soda. Though if I were in Chicago, I might think twice.

Leave a Reply

Search

Search for:

About Legal As She Is Spoke

Legal As She Is Spoke is an online project of the Program in Law and Journalism at New York Law School. Our site reports on the state of legal journalism and encourages conversation about the accuracy and felicity of reporting on law. For an explanation of our name, click here.

The Guilty Prosecutor

Last year, LASIS reporter Halina Schiffman-Shilo wrote about her experiences with the UN from Arusha, Tanzania. She's back in the urban jungle now, and is examining human rights abuses here at home, by district attorneys against innocent defendants. Enter, the Guilty Prosecutor.